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Reviewed by Alfred L. Brophy (Oklahoma City University School of Law)Published on H-SHEAR (June, 2000)

Timothy Huebner's The Southern Judicial Tradition explores the development of Southern legal thought in the nineteenth century through jurisprudential-biographical studies of six judges: Spencer Roane of the Virginia Court of Appeals, John Catron of the Tennessee Supreme Court (and later of the United States Supreme Court, though Huebner is less interested in his time there), Joseph Henry Lumpkin of Georgia Supreme Court, John W. Hemphill of the Texas Supreme Court, Thomas Ruffin of the North Carolina Supreme Court, and George Washington Stone of the Alabama Supreme Court. The book, following the design of Richard Hofstadter's American Political Tradition and G. Edward White's American Judicial Tradition, employs the case studies to make several claims about Southern legal thought. First, it was linked to a national judicial tradition, which took its law from national treatises and was bound (particularly in criminal law) to precedent. That tradition also showed remarkable concern for the community's welfare and sometimes adapted the law to concerns of humanity and expediency. Second, Southern judges inhabited a world of sectional feelings, which led them (sometimes) to promote secession and affected their decisions in cases involving race.

Professor Huebner's study, exploring as it does the central tendencies of Southern legal minds, is located at the center of at least three important debates in nineteenth century American legal history. It may be appropriate to use those debates as a vehicle for exploring Huebner's contribution to our understanding of legal history. The first is represented by William Novak's The People's Welfare, which portrays a pervasive ethic of regulation. Huebner can test whether Novak's findings should be applied to the South and whether some judges deviated from Novak's model. The second, and perhaps most contentious, is represented by Peter Karsten's Heart versus Head: Judge-Made Law in Nineteenth-Century America, which argues that in the rare instances when judges departed from precedent, they were driven by considerations of sentiment--not cold calculations of economics. Karsten poses a direct challenge to Morton Horwitz's 1977 book Transformation of American Law, which found that judges in the first half of the nineteenth century self-consciously recrafted common law rules to promote economic growth. One can compare the motives of Huebner's judges to see whether they fit Horwitz's model or Karsten's, or some other model. Finally, there is the question, represented by a series of articles from Ariela Gross, Adrienne Davis, and Sarah Barringer Gordon, among many others, of whether there was a unified legal mind in the nineteenth century.[1] Indeed, one wonders whether Huebner's study might more appropriately be called "Southern Legal Traditions"?

Huebner's project is composed, then, of a series of informative essays on his six subjects, sandwiched between introductory and concluding essays, which present his themes in remarkably lucid terms. The judges are presented in roughly chronological order, and Huebner picks certain unifying themes of each jurist's career as the focal points of the essays. Roane (1762-1822) served on the General Court (the final court of criminal appeals and the intermediate court of appeals in civil matters) from 1789 until his 1804 appointment to the Virginia Court of Appeals, where he served until his death in 1822. Roane is an important bridge between the Revolution and the antebellum era. He was educated at William and Mary under Marshall Wythe, who himself was an important link to Enlightenment legal thought in eighteenth century Virginia. Roane shared some of the traits of the Enlightenment, like a moderate opposition to slavery and support for judicial review. Huebner interprets Roane as different from judges of the mid-nineteenth century who "often freely fashioned the law to fit the changing needs of antebellum society and conceived of themselves as performing a legislative function" (p. 15). Here I'm a little unsure of how different Roane is from Ruffin. One piece of Huebner's evidence that Roane "clearly did not perceive of the court or the law as a means of shaping society," is Roane's statement in Young v. Gregorie, 7 Va. 446 (1803), that "I am compelled to yield my impressions, relative to the real justice of the appellant's cause to the established principles of the law, as settled by successive and long existing doctrine." Yet one can (through the magic of Lexis) find many similar statements by even Lumpkin, who is more willing than either Roane or Ruffin to remake the law to comport with his views on humanity, economy, and society. Lumpkin observes, for example, that "Courts are compelled to administer the law as it is." Andrews v. Bonner, 26 Ga. 520, 523 (1858).[2]

Some of Roane's other opinions suggest he was willing to modify property rights. In Currie's Administrator v. Mutual Assurance Society, 14 Va. 315 (1809), Roane, for instance, interpreted a modification in the charter of an insurance company. The company began by providing coverage to both urban and rural insureds at the same cost, but later began charging more to urban insureds because of the increased risk they posed. Roane upheld that alteration by reference to the nature of public corporations (p. 28-29). Currie's Administrator allowed more power to interfere with contracts than Roane's fellow Virginian John Marshall allowed in Dartmouth College. The comparison of Currie's Administrator with Dartmouth College suggests the importance of public rights--and how those rights were eclipsed by private rights later.

We then shift from Virginia to Tennessee, where John Catron (1786-1865) served as a justice on the Supreme Court of Errors and Appeals from 1824 until his impolitic support of Martin Van Buren led to his replacement in 1836. Early the next year, President Andrew Jackson nominated Catron to the United States Supreme Court. Catron professed less fidelity to precedent than did Roane (p. 45), although one should be cautious to link public statements about precedent with a judge's actual voting behavior. Early in his career, he supported native land claims pursuant to treaty rights, although those cases seemed relatively easy ones. It is difficult to see how some of those cases, like Blair v. Pathkiller's Lessee, 10 Tennessee 407 (1830), could have been decided differently consistent with the federal government's treaty obligations.

Catron appears as a Jacksonian Jurist, to borrow a phrase from Charles Smith's 1936 biography of Chief Justice Roger Taney. His opinion in State v. Foreman, 16 Tenn. 256 (1835), supported white property rights over those of natives. It presents a conflict between morality and law, which Catron acknowledged. But Catron did not allow sentiments of morality to dictate the result. He rested on the "discovery" doctrine. Similarly, in Fisher's Negroes v. Dabbs, 14 Tennessee 119 (1834), an important though under-studied case, Catron upheld a will manumitting slaves and providing that they be transported outside the state. Catron interpreted the will broadly, to require that the slaves be transported from the United States. Catron reaches an antislavery conclusion in Dabbs, even though he is proslavery. It is an important Southern counterpart to the Northern opinions that reached proslavery results despite judges' antislavery feelings, which Robert Cover wrote about in Justice Accused. Catron also opposed the Tennessee bank in two editorials in the Nashville Journal in 1829 and, in a series of contentious claims between first settlers and subsequent good faith improvers, decided consistently in favor of the newer settlers.

Huebner portrays a strong contrast between Catron and his next subject, Joseph Henry Lumpkin (1799-1867). Lumpkin, who served on the Georgia Supreme Court from its inception in 1846 through the Civil War, was an evangelical Whig. Lumpkin is an especially likely candidate for inclusion in this study because he spoke and wrote frequently about the need for codification and industrial development, as well as religious reform, and was a founder of the University of Georgia law school. How did Lumpkin's political and religious ideology influence his decisions? There are several examples.

Perhaps the central case in Huebner's analysis is Shorter v. Smith, 9 Ga. 517 (1851). The plaintiffs owned ferries across two rivers. They sought to enjoin the construction of nearby bridges, based on their franchise. Lumpkin easily dismissed the claim in an opinion rich with Whig rhetoric about the importance of competition and Democratic rhetoric about the importance of preserving the government's power. Although English precedent supported broad construction of rights from grants and some early American cases also construed franchises "to exclude all contiguous competition," Lumpkin would not grant such exclusive rights. He quoted Chief Justice Taney's reasoning in Charles River Bridge: "A State ought never to be presumed to surrender their power, because, like the taxing power, the whole community have an interest in preserving it undiminished." Lumpkin went further than Taney in observing that "The continued existence of the government would be of no great value, if by implication and presumptions, it was disarmed of its creation, and the functions it was designed to perform, transferred to the hands of privileged corporations." 9 Ga. at 525. Lumpkin distanced himself from the Whig jurist Chancellor Kent, although he emphasized competition. "[W]e have and in the very nature can have, no other protection but that which results from free and unrestricted competition." 9 Ga. at 527. In Shorter Lumpkin is in the mainstream of American legal thought regarding vested rights in the 1850s, for, as he said, "if one principle is settled in this country beyond all hazard of a change, it is, that in grants by the public, nothing passes by implication." 9 Ga. at 524.

Huebner makes me wonder when is it appropriate to emphasize continuity between jurists on the issue of vested rights? Is there a unified Southern approach? If so, how do we explain cases like Fisher v. Higgins, 21 Ky. (5 T.B. Mon.) 140 (1827)? In Fisher several Tennessee judges differed on the constitutionality of retroactive application of a law that allowed prior purchases of property to oust those who mistakenly occupied and then made improvements to the land.[3] And if there is a unified Southern approach, why are we talking about Catron as a Jacksonian jurist and Lumpkin as an evangelical Whig? Is it because of the differences of Catron and Lumpkin towards economic development? Recent scholarship suggests that there was a near consensus among all Americans over the desirability of progress and economic growth.[4] The differences may be characterized as those between old and new wealth. For, as Emerson put it in "The Conservative," all wanted a share of property: "You quarrel with my conservatism, but it is to build up one of your own; it will have a new beginning, but the same course and end, the same trials, the same passions; among the lovers of the new I detect a jealousy of the newest." Emerson's Essays 178 (Joel Porte ed., 1983).

I do think that there are important differences between Whigs and Democrats on a number of issues, including vested rights. But those differences appear at the margins. Take Lumpkin's opinion in Bishop and Parsons v. Mayor and Aldermen of Macon, 7 Ga. 200 (1849). Macon officials burned a house as a fire break, then denied compensation, claiming that the house would have burned anyway. Well-established doctrine held that a town could burn houses in such instances with impunity; nevertheless, Lumpkin required partial payment on the idea that the house was burned prematurely and that some of the furnishings could have been saved if it had not been burned so quickly. Such was Lumpkin's careful balancing of community and individual interests.

Lumpkin disregarded precedent in some instances, at least once with allusion to outmoded feudal rules. He wrote in Shorter, for example, that "In England and other countries, which are governed by force, the performance of public duties by inn-keepers, owners of bridges and ferries, &c., can be coerced by the enforcement of legal penalties. Not so here . . . ." 9 Ga. at 527. And in simplifying the rules regarding conveyancing, Lumpkin wrote that "The nations of the earth are clamoring for bread, they will be put off no longer with a stone. They ask for reasons, they will not be satisfied by mere precedents, however hoary with antiquity. It is quite too late in the age of the world, to substitute words for things, sound for sense, the shadow for the substance." Leary v. Durham, 4 Ga. 593, 602 (1848). Shades of Emerson's "American Scholar," it seems to me. But more often Lumpkin followed precedent, as in Maddox v. Simmons, 31 Ga. 512 (1860), where he followed well-established contract law and refused to investigate the apparent unfairness of a contract entered into by an old man who may have been mentally disabled. Lumpkin self-consciously denied his right to change the law in some instances.[5] Like Catron, he issued an antislavery decision despite his proslavery sentiments (pp. 93-94).

Thomas Ruffin (1789-1865), whom Huebner calls a "judicial pragmatist," presents a contrast with Lumpkin. Ruffin served on the North Carolina Supreme Court from 1829 until 1853 and earned a reputation as a strict adherent to legal logic with his opinion in State v. Mann. The case arose from the prosecution of John Mann for assaulting Lydia, a slave whose services he had hired for one year. Mann hit her when she committed a small offense, and she ran away. Mann then shot her. A jury convicted him of battery, but Ruffin overturned the conviction, arguing that "the power of the master must be absolute, to render the submission of the slave perfect." 13 N.C. 263, 266 (1829). Mann combined considerations of expediency, experience ("in the actual conditions of things, it must be so"), and reasoning based on legal precedent.

Ruffin wrote illuminating opinions on property rights, which show a balancing of the interests of state regulation and individual property rights. In Hoke v. Henderson, 15 N.C. 1 (1833), Ruffin upheld the right of a court clerk to continue in office until his term expired. Ruffin held that the legislature could not terminate the clerk's position when it wanted to switch from appointed to elected clerks (pp. 135-137). Hoke sprung from Ruffin's respect for property rights. Another key property opinion was Raleigh & Gaston Railroad v. Davis, 19 N.C. 451 (1837). Davis upheld a North Carolina statute allowing a railroad to purchase private property without the owner's consent. Davis argued that the state could not take property for use by the railroad, for the property was not being taken for a public purpose. Ruffin recognized that the act benefitted a private company, but he linked public and private interests. "An immense and beneficial revolution has been brought about in modern times, by engaging individual enterprise, industry, and economy, in the execution of public works of internal improvement." (19 N.C. at 469) Those private interests undertook to build and operate the railroad, which in turn benefitted the public. Such reasoning was in line with the dominant Southern ideology, which sought to protect the state from upheaval and thus subordinated individual liberty interests to the state.

Often Ruffin discussed the importance of following precedent. He wrote, for example, in State v. Ephrain, 19 N.C. 160, 167 (1836):

It is true, that the exigencies of society have, from time to time, obtained, in some instances, judicial modifications of ancient rules of law, but this has been effected by slow and almost imperceptible degrees, and without a recurrence, at those times, to first principles, until a succession of inadvertent departures from the old rule, have so strongly established exceptions to it, that a court subsequently reviewing the whole ground, finds it more difficult and dangerous to attempt to re-establish the principle of its integrity, by retracing the steps of those who had lost sight of it, than to receive and enforce the rule, with its exceptions, all as they came down to us. . . . Courts cannot thus change their position, and frame anew original rules of law, or introduce exceptions not before found, either in terms or in principles.

In light of his references to precedent I wonder whether "pragmatist" is the best way to characterize Ruffin's approach. He took the world as it was, followed precedent rather than tried to change it, and sought limitations on government.

But what of the differences between Ruffin and Lumpkin? Ruffin seems to be the eighteenth-century jurist -- precedent bound and taking the human condition the way it is. Lumpkin, to my reading, is more willing to change the law than was Ruffin. One might also look to Lumpkin's opinion in Beall v. Beall, 8 Ga. 210, 223 (1850), where he interpreted a private act that legitimated two illegitimate children. He upheld the act over claims that it was an unconstitutional interference with the property rights of the decedent's other child. Lumpkin noted that Ruffin had upheld the right of the legislature to legitimate a child even without the father's consent, but Lumpkin thought that went too far: "I should seriously question the power of the Legislature to pass a private Act, changing the law of descent, as it respects one individual of the community, without his consent . . . . [O]ne of the essential elements of the law is, it must be general -- a rule prescribed for the civil conduct of the whole community, and not a transient order from a superior, to or concerning a particular person." I think the case illustrates some of the differences between two of the South's greatest antebellum jurists.[6]

There are two other jurists who present fine contrasts -- John Hemphill of Texas (1803-1862) and George Washington Stone of Alabama (1811-1894). Hemphill was born in South Carolina and educated at Washington and Jefferson College in Pennsylvania and in the law office of David J. McCord, a prominent lawyer, codifier, and reporter, as well as the husband of one of the leading proslavery writers of the 1850s. Hemphill was admitted to practice in 1828 and he spent the next decade in South Carolina, practicing law and engaging in politics. As editor of the Sumter Gazette he supported nullification. He moved to Texas in 1838, hoping for political and economic advancement. His hopes were realized. He was appointed a district judge within two years of his arrival. Less than a year later, he ascended to the Texas Supreme Court, a position he held until 1856 when he went into the United States Senate.

Working in a remote province, Hemphill had little in the way of precedent. Justices of the Texas Supreme Court took advantage of that opportunity to craft a law suited to Texas's needs. Hemphill construed homestead exemptions broadly, for instance, to protect families from losing their homes through bankruptcy. Perhaps most illuminating, though, is Huebner's argument that the Texas Supreme Court treated slaves more leniently than other Southern courts in part because there was a smaller fear of abolitionists in Texas than elsewhere (p. 119). For example, Texas allowed slaveholders to emancipate slaves via will, if the slaves were freed outside the state, at a time when other Southern courts were restricting that right (p. 122). Whether that result was based on the justices' sense of security from abolitionists, their sentiments of humanity towards slaves, their desire to decrease the black population of Texas, or some other reason is less clear. One might hope that in Hemphill's case the relationship he had with a slave named Sabina and the two children they had together might have influenced him towards antislavery results. Indeed, he sent both of the children to be educated by abolitionists in Ohio (p. 125). Hemphill, nevertheless, was a strong support of secession in Congress (p. 127).

George Washington Stone, who served on the Alabama Supreme Court from 1856 to 1865 and again from 1876 until his death in 1894, is the only jurist Huebner studies who served after the war. Stone was born in Virginia, grew up and was educated in law in Tennessee, then moved to Alabama, where prospects for young lawyers were good (pp. 160-161). Stone illustrates well the conflicts that Southern jurists faced between national and state interests. In his case, the conflicts he decided were between the Confederacy and Alabama. In a series of opinions Stone, citing Marshall Court opinions, upheld the right of the Confederacy to conscript soldiers (pp. 163-167). Removed from the Supreme Court during Reconstruction in 1865, Stone came back to the court in 1876 as Reconstruction was undone in Alabama (p. 168).

Stone's post-Reconstruction opinions again show the hallmarks of Southern jurisprudence, including upholding Alabama's anti-miscegenation law over claims that it violated the Fourteenth Amendment. He later proffered a ridiculously narrow interpretation of what constituted state action, which allowed court officials to exclude blacks from the grand jury pool free from Fourteenth Amendment scrutiny. He wielded constitutional arguments, however, to protect corporations from laws he viewed as burdening them disproportionately (pp. 174-175). Stone was, thus, both committed to white Southern principles and to the national bar's respect for business. He is a fine end to the six biographies, which shows the development of Southern jurisprudences within guideposts established by the United States Supreme Court, treatises, and state courts from other sections of the country.

Huebner's judges, then, have a great deal to say on the themes advanced by William Novak, Peter Karsten, and Morton Horwitz. They are in line with the judges described by Novak, who seek a well-regulated society. Karsten's heart paradigm does not seem to fit Huebner's judges quite as well. Thomas Ruffin wrestled aside "the feelings of the man" in his breast in favor of the "duty of the magistrate." Huebner presents one of the strongest book-length defenses of Morton Horwitz's Transformation of American Law in recent years. His judges look very much like Horwitz's ambitious jurists who recrafted the law when they could to comport with their own visions of economy and society.

Maybe one unifying theme is the subordination of private interests to the public good. There is much in proslavery writing that suggests calculations of utility should triumph over individual considerations. One of the great distinctions between Northern and Southern legal thought may be the importance of preservation of the state over individual liberty. Much, much more research needs to be done on this point to test that thesis. But when one asks the obvious question: how much did the institution of slavery affect the development of Southern legal thought, the answer turns in important ways on the identifying differences that cut across judges. Certainly, slavery jurisprudence itself was affected, but what about other areas? Was it responsible for the development of a doctrine that celebrated the protection of the public at the expense of property rights?

Huebner has contributed a really fine work at the intersection of several key roads in nineteenth century legal history. It may very well be that the most profitable studies in the next few years will mine his techniques of biographical sketches to recover the main themes of American legal thought and see how the whole system of thought--religious, political, moral, and economic ideas--fit together in American minds. If so, we can model Huebner's techniques. He offers a sophisticated interpretation of the cultural forces behind the shifts in legal thought in the nineteenth century.

[2]. In case you have not already heard, both Lexis and Westlaw have made great strides in the past year in putting antebellum state cases into their databases. See also Caldwell v. Justices of Gilford County, 27 N.C. 315, 330-31 (1844) (Ruffin) ("[T]hey are to found their judgment on what they believe the legislature intends on it; in other words, they are to act on what they believe the law to be, and not what they think it ought to be. It is a criminal perversion of power, to use it for a purpose, for which the legislature did not confer it, and with the view of defeating the end the legislature had in entrusting the power to them. In fine, in this case, it would amount to an attempt by a few individuals, to set up their will against the general sentiments and habits of mankind, and the legislative authority of the country.")

[3]. Of course even Chancellor Kent thought there could be some retroactive liability. He wrote a brief to that effect in the Mississippi Supreme Court in 1846. (Port Nevins Banks, 6 Smedes & Marshall 513).

[4]. See, e.g., William Gienapp, "The Myth of Class in Jacksonian America," 6 Journal of Policy History 247-49 (1994).

[5]. See Cleland v. Waters, 19 Ga. 35, 49 (1855) ("We feel the full force of these arguments. They have been addressed to this and other Courts before, but have failed to produce conviction, for the simple reason that such appeals are made to the wrong tribunal. They should be submitted to the halls of legislation, and not to the Courts of Justice. It is not the province of the Courts to make public policy, but simply to declare it, as it exists. . . . Public opinion is too transient and changeable to become a rule of decision. It must take the shape of settled law to become a rule of decision. It must take the shape of settled law before the Courts will undertake to enforce it.") (emphasis in original).

[6]. See also Patterson v. Hickey, 32 Ga. 156, 164 (1861) (Lumpkin) (mentioning Roane and Ruffin and contrasting them with Kent and Story).

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